Sarah Saul Jacob vs Messrs. Buckingham Court Limited

Lahiri, J.—This is a defendant''s appeal against concurrent decrees for ejectment passed by the Presidency Small Causes Court. the plaintiff instituted a suit for ejectment against the defendant alleging that the defendant could not rely upon the protection of the West Bengal Premises Rent Control Act, 1950, because she was a habitual defaulter and therefore she had forfeited her immunity from ejectment under clause (i) of the proviso to sub-section (1) of Section 12 of the West Bengal Premises Rent Control Act, 1950. During the pendency of the suit the plaintiffs filed an application u/s 14(4) of the Act for a direction upon the defendant to deposit all arrears of rent and also current damages. On the 28th March, 1952, the Court which was trying the suit passed the following order upon this application:-

"Hence defendant is directed to go on depositing current damages at Rs.86-10 per month regularly in Court according to English Calendar month and according to law until the final disposal of the suit.

By the same order the Court also recorded the fact that the defendant had deposited all arrears of rent in the office of the Rent Controller. It appears that after the 28th March, 1952, the tenant defendant went on depositing damages at the rate specified in the order, from month to month, within the time prescribed by Section 14(4). But these deposits were not made in Court but in the office of the Rent Controller.

On behalf of the plaintiffs landlords an application was fled for striking out the defence, as the tenant defendant had failed to comply with the conditions of Section 14(4). The defendant contended that she made all the deposits within time but the deposits were made in the office of the Rent Controller and according to the defendant the defence could not be struck off under these circumstances. The trial Court, however, overruled the contention of the defendant and held that the defence should be struck off by an order dated the 13th January, 1953, and the suit was adjourned to the 14th January, 1953, for ex parte hearing. On the 14th January, 1953, the suit was decreed ex parte on the ground of default. Against that decree the defendant filed an appeal and the Court of Appeal has also confirmed the decree of the trial Court upon the view that the deposits made by the defendant in the office of this Rent Controller were not valid deposits u/s 14(4) of the West Bengal Premises Rent Control Act, and accordingly the written statement of the defendant had been rightly expunged by the trial Court.

Against that decree of the Court of appeal below the defendant has brought this Second Appeal.

Mr. Bhose appearing in support of the appellant has argued that the Courts below have erred in law in holding that in the circumstances of the case, the deposits made by the defendants were not valid deposits. It seems to me that this contention is right. Section 14(4) does not mention the place where the deposit is to be made and the place of deposit may be determined by the Court. There is, however, a distinction between non-fulfilment of a statutory condition and non-observance of a condition imposed by the Court. The statutory conditions which must be fulfilled to make a deposit valid u/s 14(4) are (a) that the rate at which the deposit is made must be the rate at which the rent was last paid and (b) the deposit must be made by the 15th day of the next following month. A deposit of monthly rent u/s 14(4) is invalid if the rent deposited falls short of the amount payable by the tenant under that section or if it is deposited after the 15th day of the next following month. If, however, the rent is deposited at a place not authorised by the order of the Court u/s 14(4) the deposit cannot be said to be invalid but irregular and it is always open to the Court to consider whether the irregularity was the result of an honest mistake or was a deliberate act on the part of the tenant calculated to harass the landlord. In the former case the Court will condone the irregularity but in the latter case it will not. In the case before me there is nothing on the record to indicate that the tenants deposited the rent in the office of the Rent Controller with a view to flout the order of the Court made on the 28th March, 1952, or with a view to harass the landlords, and I must hold that this act of the tenants defendants was the result of an honest mistake, and in that view of the matter I am prepared to condone the irregularity committed by the defendants in depositing the rent in the office of the Rent Controller instead of in the Court which was trying the suit.

On behalf of the tenants defendants it was argued in the Court of appeal below that even upon the ex parte evidence adduced by the plaintiffs, the decree for ejectment could not be sustained because that evidence did not prove that the defendants were deprived of the benefit of the provisions of the West Bengal Premises Rent Control Act, 1950, under clause (i) of the proviso to sub-section (1) of Section 12. It is not necessary for me to express any opinion as to the merits of that contention because I have come to the conclusion that in the circumstances of this case, the order of the Court by which the defence of the defendants was expunged is not a legal order and as such the ex parte decree must be set aside.

Mr. Mitra appearing for the respondents raised a preliminary objection to the form of the appeal. He pointed out that the tenant defendants did not file a copy of the judgment of the first Court along with the memorandum of appeal. On going through the records I find that the documents which were filed along with the memorandum of appeal included the decree of the lower appellate Court and "after judgment record" of the first Court judgment of the lower appellate Court and an order of the trial Court. Mr. Mitra points out that the order of the trial Court which was filed with the memorandum of appeal is not the judgment of the trial Court and he was shown from the order-sheet of the first Court that the order which has been filed is not the judgment. I am not, however, prepared to hold that this defect in form makes the appeal incompetent. It appears from the order-sheet that the document which was filed by the appellants is the last order in the order-sheet but besides that order there is another judgment in the record. Presumably when the defendant or her lawyer applied for a copy of the judgment and decree for the purpose of filing the appeal in the lower appellate Court, she or he was supplied with the last order in the order-sheet dated the 14th January, 1953, and the operative part of that order also shows that the suit was finally decreed ex parte on that date and it runs thus:

"Suit is decreed ex parte for khas possession on the ground of default with costs and pleaders'' fee. Rs.27-8 certified, the plaintiff to obtain khas possession by execution of the decree."

I have not the slightest doubt in my mind that his order was taken to be the judgment both the defendant and her lawyer and also by the copying section of the Court. It is strange that the real judgment in this case was written out on the reverse side of the deposition of the plaintiff''s witness and there is no indication in the order-sheet that that was the proper judgment in the case. In these circumstances, I am not prepared to hold that there was any defendant in form in the Second Appeal which was filed by the tenant defendants.

In the result this appeal is allowed; the decrees made by the Courts below are set aside and the suit is sent back to the Court of first instance to be tried in accordance with law.

The tenant defendant will have costs of the lower appellate Court and also of this Court without any hearing fee.

Mr. Bhose appearing for the appellant raised a point that this suit will now be governed by the provisions of the West Bengal Premises Tenancy Act, 1956, and not by the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. But in the view which I have taken of the case, it is not necessary for me to express any opinion on this question.

Since the suit was instituted in 1951, I direct that the Court of first instance will try to dispose of the suit as quickly as it can.

Let the records of the case be sent down to the lower Court expeditiously.